[2012] FWA 3252

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Fair Work Act 2009
s.229 - Application for a bargaining order

National Union of Workers
Ross Cosmetics Australia Pty Ltd



Proposed bargaining Order by the National Union of Workers (NUW).

[1] On 10 April 2012 the National Union of Workers (NUW) made an application in B2012/671 for a bargaining Order. The application was made pursuant to section 229 of the Fair Work Act 2009 (the Act). The application named as the respondent Ross Cosmetics Aust. Pty Ltd (Ross Cosmetics). At the conclusion of the hearing I issued good faith bargaining orders. I now publish the reasons for my decision.

[2] The matter was joined with an application (B2012/658) to deal with a bargaining dispute pursuant to section 240 of the Act which had been lodged by the NUW on 4 April 2012 and which had been the subject of proceedings before me on 5 April 2012. Those proceedings were recorded on transcript and that transcript was, with the agreement of the parties, accepted as material that I should consider in making my decision about the application pursuant to Section 229 of the Act. At the conclusion of the proceedings on 5 April 2012 it was foreshadowed that the NUW would be making an application for good faith bargaining orders on 10 April 2012 and that that matter together with B2012/658 would be listed for hearing on 10 April 2012.

[3] The parties accepted that there was some urgency for hearing and determining the matter since one of the central matters in dispute in both B2012/658 and B2012/671 was the decision of Ross Cosmetics to put a proposed agreement to a ballot of employees on 12 and 13 April 2012.

Background and Evidence.

[4] There have been a series of collective agreements between Ross Cosmetics and the NUW, the latest of which was approved by me on 17 August 2011 and is titled, Ross Cosmetics and National Union of Workers Enterprise Agreement 2010 1. The nominal expiry date of that Agreement is 1 April 2012.

[5] Ross Cosmetics accepts that most of the employees have traditionally been and continue to be represented by the NUW.

[6] The NUW organiser, Ms Morgan, contacted Frank Beard, Ross Cosmetics Finance Manager, in the week starting Monday 13 February 2012 to organise a mass meeting with members to discuss a log of claims for the next agreement. 2 There was some exchange between Ms Morgan and Mr Beard but the meeting time had not been finalised when Mr Beard advised Ms Morgan on 29 February 2012 that Ross Cosmetics had engaged Ms Grace Collier as an industrial relations consultant to manage the bargaining for the agreement.3

[7] This notification occurred after Ms Collier had already held a meeting with the employees earlier on that day and had provided them with a draft agreement together with a notice of representational rights. Ms Morgan was provided with an email copy of the proposed agreement from Ms Collier on or after 1 March 2012.

[8] The documentation provided to employees on 29 February 2012 and to Ms Morgan on or after 1 March 2012 referred to the document as the “proposed enterprise agreement” although the agreement document itself did not have any marking such as “draft” or “proposed” on it. 4 The notice is not authorised and makes a number of references to the role which will be played by Ms Grace Collier who the notice said would be available throughout the process should employees have any questions about the proposed agreement or the process. The notice states “to ensure that we follow all legislation correctly we have engaged an Industrial Relations Consultant, Ms Grace Collier from Industrial Relations Consulting.” Ms Morgan gave evidence that many members had the impression that Ms Grace Collier was from Fair Work Australia or another government agency.5

[9] The notice describes the process to be followed:

[10] It should be noted that the four steps make no reference to the union nor is there any suggestion of a process of bargaining or negotiation.

[11] The text then continued with extracts of the Notice of Representational Rights with some modifications including, underlining of the phrase “you can also appoint yourself as a bargaining representative”; the addition of the underlined words “please note that you do not have to appoint a representative if you don’t want to”; the insertion of the email address for Ms Grace Collier in the section of the notice about where you can get further information about the notice and enterprise bargaining; and the inclusion of a section that if you are under 21 years of age you can arrange for a confidential discussion with Ms Grace Collier.

[12] The notice also does not include the heading which identifies that it is a notice of representational rights and it does not include the introductory sentence: “[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].”

[13] The document also includes the statement that:

This is arguably misleading as an examination of the proposed EA document reveals that the proposed EA removes a number of clauses of the current agreement which provide current entitlements to employees.

[14] There is no evidence that any other employees have been appointed as bargaining representatives. The only employee bargaining representative of which I am aware is the NUW.

[15] The NUW held a meeting with its members on 2 March 2012. Ms Morgan states that “the members were very angry that Ross Cosmetics had put a draft agreement to them without any negotiations taking place and without involving their Union. They were angry that the draft removed major parts of the current Agreement.” 7 The NUW after meeting with its members provided a log of claims to Ross Cosmetics on 7 March 2012. The first item in that log was that “the current agreement form the basis of the new agreement (i.e. current terms and conditions of employment continue subject to this log of claims and any relevant legislation)”. The other items related to the level of wage increase, the level of redundancy payments, operative date, classification review, seasonal and limited tenure employment, length of morning tea break, increase in bereavement leave, time of taking annual leave, and manning levels.

[16] On 13 March 2012 Ms Morgan advised Ms Collier that the NUW “would like to commence negotiations with you as soon as possible.” Ms Collier responded on 14 March 2012 that she would get back to the NUW on proposed dates shortly. On 19 March 2012 Ms Collier proposed a meeting at 9.30am on Friday 23 March 2012.

[17] Ms Collier circulated a written response to the NUW log of claims to the NUW and all staff together with their pay slips on 22 March, that is prior to the initial meeting. 8 That response advised employees and the NUW of some changes to the employer position but, understandably, because there had been no negotiations, some of the assessments by Ms Collier in the document about what was agreed were subsequently found to be incorrect. For example in her 22 March 2012 bulletin to employees Ms Collier described the first of the NUW claims as being “agreed” because “as discussed in the meeting, even if no new Agreement is made, the old agreement continues to apply with the force of law and therefore all terms and conditions of employment are protected. The new Agreement must be between the company and the staff, fully compliant with new legislation and the union are bargaining agents.”9 The document stated that the claim about manning was “agreed in principle but further discussion of the exact wording of the clause needs to occur.”

[18] Ms Collier advised on 22 March that the meeting would start at 9.30am but would finish at 10.15am and proposed a further meeting on 30 March 2012.

[19] Both the NUW and Ross Cosmetics agree that the meeting on 23 March 2012 lasted less than one hour. The NUW gave evidence that it lasted 45 minutes. Given the earlier advice from Ms Collier that the time allocated for the meeting was to be a maximum of 45 minutes, I accept that the meeting lasted no more than 45 minutes.

[20] Ms Collier issued a further update to employees on 27 March 2012 10 which claimed to summarise the outcomes of the meeting of 23 March 2012. In respect to the first item on the log of claims she advised employees that:

The document reflected that Ross Cosmetics had reversed its earlier agreement in principle subject to finalising the wording of the manning clause and now stated that “this item will be dealt with outside the EBA process.” The document did reflect that Ross Cosmetics had changed its position and had reached agreement with the NUW on some items such as time of taking annual leave and the morning tea break.

[21] On 28 March 2012 Ms Morgan says that a mass meeting of NUW members heard a report back concerning the meeting of 27 March 2012 and decided to continue to pursue a number of claims including improved wages increase, redundancy and a return of the provisions Ross Cosmetics had removed from the current agreement. 11 A number of statements from NUW members were provided which supported the contention of Ms Morgan that the members were unhappy with the way in which the negotiations were proceeding.

[22] A second meeting was held between Ms Collier, Mr Beard and the NUW on 30 March 2012. The NUW say that this meeting lasted for no more than 30 minutes. Ms Collier says that the meeting lasted for about 45 minutes.

[23] At the meeting agreement was reached about three days bereavement leave and on some other matters.

[24] At that meeting there was discussion about why the “union related clauses” had been removed. These included matters such as union training leave, recognition of delegates and representation rights, union meetings and all references to the NUW. This was clearly encompassed by the first item in the log of claims which was for the maintenance of the current agreement conditions. Despite the fact that these were all part of the existing agreement which had been approved under the Fair Work Act 2009, Ms Morgan says that Ms Collier said that it was not legal for these provisions to be included. In the notice of 27 March 2012 quoted earlier Ms Collier had stated in respect of the union claim: “this is not possible because the document must comply with the new laws.” In the proceedings Ms Collier denied that she stated that these matters were not legal and said that it was essentially that Ross Cosmetics did not want to retain these provisions. Regardless of Ms Collier’s intentions I am satisfied that it was reasonable for the NUW and its members to have interpreted Ms Collier’s statements as meaning that it was not legal to retain the clauses and the reference to the NUW which had been removed in the proposed agreement.

[25] Ms Collier says that there was no extensive discussion of these matters and in particular that there was no specific discussion about each of the particular clauses which had been removed.

[26] Ms Collier clearly stated in the meeting on 30 March 2012 that Ross Cosmetics was not prepared to consider any further change to the proposed agreement and that because the NUW was not prepared to agree the matter would be immediately distributed to employees for a vote. 12 Ms Morgan argued that this was inappropriate and that the NUW and its delegates should have the opportunity to advise the members of the responses of the employer and seek new instructions and return to negotiate the matters further.

[27] Between 30 March 2012 and 2 April 2012 Ross Cosmetics distributed the proposed agreement together with a covering advice to each employee and required each employee to sign that they had received the material. The covering advice included a “notice of vote”. That notice stated that voting would be on 12 and 13 April 2012 and that “our bargaining agent will be collecting the votes. The details of how people vote is confidential and a copy of them will be retained by the bargaining agent should Fair Work Australia wish to inspect the voting tally.” The notice advised that voting can be by text which should include the last name of the voter or by email which should also include the last name of the voter or by telephone. The notice stated that “someone from the office of the bargaining agent may ring you to remind you to vote and can collect your vote by phone”. Although it was not stated on the notice the bargaining agent referred to is a reference to Ms Grace Collier and her company. It is not disputed that Ms Grace Collier is an agent engaged by and paid for by Ross Cosmetics.

[28] The other covering note was headed “agreement negotiations update”. That notice outlined that a meeting had been held between the company and the union that day and that the main areas of disagreement were wages, redundancy and “whether the union has their branding on the document.” 13

[29] The note then stated:

[30] Then followed eight dot points which purported to summarise the agreement. One of these dot points read “all existing entitlements remain the same”.

[31] The NUW and Ross Cosmetics agreed that a significant number of employees were on annual leave over the two weeks including the Easter Break. That is the two weeks immediately following the meeting on Friday 30 March 2012.

[32] Ms Collier advised Ms Morgan on 30 March 2012 by email that the vote would be proceeding.

[33] Following the notification of the dispute with FWA by the NUW on 4 April, Ross Cosmetics distributed a further bulletin to employees on 5 April 2012. 15 That bulletin encouraged employees to vote yes and explained the company’s position.

[34] Four NUW members and delegates provided statements to FWA for these proceedings. The names were not included on the copies provided to Ross Cosmetics. The statements supported the evidence given by Ms Morgan. They expressed dissatisfaction with the negotiation process and particularly the lack of any notice and the exclusion of the NUW official from the meeting of 27 February 2012 and the absence of negotiation prior to the circulation of the proposed agreement. They also expressed their lack of trust in Ms Collier and their concern about the lack of confidentiality of the voting process and the holding of the ballot when a number of employees were on leave and are unable to properly discuss the matter with their colleagues. The employees used words like “intimidating” to describe the voting process. One employee stated that it was “unfair that we must vote only by text message or email” stating that they “do not have access to either of these things.”

Legislation and jurisdiction

[35] I am satisfied that the following conditions required by the legislation for the making of good faith bargaining orders have been met. I put these matters to the parties during the proceedings and these findings were not disputed.

[36] Therefore I may make an order provided that I am satisfied that “one or more of the relevant bargaining representatives for the agreement have not met or are not meeting, the good faith bargaining requirements” (Section 230(3)(a)(i)) and I am satisfied that “it is reasonable in all of the circumstances to make the order”. (Section 230(1)(c)). The parties vigorously disagree about whether or not the good faith bargaining requirements are being met.

[37] Section 228 of the Act sets out the good faith bargaining requirements and reads as follows:


[38] I have considered all of the evidence and the submissions of the parties. I have not canvassed all of these matters in the decision.

[39] The Applicant referred to the decision of Commissioner Whelan in NUW v Defries Industries Pty Ltd 16 and in particular to her findings in respect to Section 228(1)(a) and (b):

[40] The Applicant also referred to the decision of a Full Bench of the AIRC in Public Sector Union (ABC) (Interim) Award 1992 18 and the recent Full Bench of FWA decision in Endeavour Coal Pty Ltd v APESMA19. The following passage from the ABC case which was cited in the Endeavour Coal case was particularly referred to.

[41] The Applicant alleges a breach of Section 228(1)(a) has occurred in respect to the brevity and inadequacy of the two meetings. Ross Cosmetics suggested that Section 228(1)(a) only referred to the timing of the meetings but I do not accept that the term can be given such a narrow meaning.

[42] The Applicant alleges a breach of Section 228(1)(b) has occurred when the company organised a meeting with employees and issued a draft agreement on 27 February 2012 without any contact or involvement with the NUW when Ross Cosmetics knew that the NUW was the representative of many employees and that the NUW was actively seeking membership meetings as a precursor to bargaining meetings. The Applicant argues that Ross Cosmetics had an obligation to disclose its document and its intentions to the NUW.

[43] The Applicant alleges a breach of Section 228(1)(d) has occurred when the company at the second of the two meetings made it clear that they were not prepared to consider matters further and would proceed to a vote of employees. The Applicant alleges that Ross Cosmetics demonstrated that they were not approaching negotiations with an open mind and they were adopting a rigid predetermined position. The Applicant says it was denied the opportunity to seek instructions from the membership and to then respond to the employer’s position.

[44] The Applicant alleges a breach of Section 228(1)(e) has occurred by the removal from the existing agreement of clauses which are consistent with freedom of association, by notification of a vote prematurely, by not allowing the bargaining representatives to be able to consult with members about the company’s response prior to the company advising employees of the vote, and in the unfair approach to the vote. The Applicant says that the voting procedure is not independent, is unorthodox, and exposes employees to unfair pressure by requiring them to reveal their individual vote to the employer and by pressuring them to exercise a vote rather than abstain. The Applicant says that some employees are unfairly denied the opportunity to vote due to lack of access to email and text messaging. The Applicant says that employees are denied the opportunity to organise and consult due to many employees being on leave and that this is not consistent with collective bargaining.

[45] Ms Collier for Ross Cosmetics argued that a flawed process of voting or a flawed process of providing information about the affect of an agreement during the seven day access period prior to voting are grounds under Section 188 of the Act for FWA to find that there has not been genuine agreement and to then refuse to approve an agreement. Ms Collier argued that this is how these matters should be dealt with rather than under good faith bargaining provisions.

[46] Ms Collier argued that most employees have access to computers and mobiles and that the company was not preventing employees from contacting each other or their union. Ms Collier argued that it was not possible to vote by electronic means with confidentiality as it is necessary to guard against multiple voting or voting by non-employees. Ross Cosmetics argued that it has disclosed all relevant information and provided reasons for its responses to the NUW log of claims. Ross Cosmetics argued that there had been many collective agreements with the union over a period of 15 years and therefore the parties understood the issues well and two meetings were therefore adequate particularly given that the proposed agreement adopted many of the clauses from the existing agreement. Ms Collier indicated that Ross Cosmetics accepted that employees might vote “no” to the proposed agreement.

[47] I consider that the following circumstances in this case must be considered concurrently:

[48] It is not necessarily a breach of good faith bargaining:

[49] However, in some circumstances all of the above can be a part of the basis for finding a breach of good faith bargaining.

[50] In the circumstances of this case it is not consistent with good faith bargaining and undermines collective bargaining or freedom of association to:

[51] In all of the circumstances, I regard the matters in points 8, 14 and 15 in paragraph 47 above as substantiating a breach of Section 228(1)(a)

[52] In all of the circumstances I regard the matters in points 14 and 15 in paragraph 47 above as substantiating a breach of Section 228(1)(d) and there may also be a related breach of Section 228(1)(c).

[53] In all of the circumstances I regard the matters in points 4, 5, 6, 7, 9, 10, 11, 12, and 13 in the context of points 1, 2, 3 and 8 in paragraph 47 above as substantiating a breach of Section 228(1)(e).

[54] I accept the submission of Ross Cosmetics that a flawed process of voting or a flawed process of providing information about the affect of an agreement during the seven day access period prior to voting are grounds under Section 188 for FWA to find that there has not been genuine agreement and to then refuse to approve an agreement. However, there is nothing in the legislative scheme which suggests that these matters must exclusively or generally be dealt with after the event at the approval stage rather than at the bargaining stage using good faith bargaining orders. Section 229(3) clearly implies that the period during which good faith bargaining orders are appropriate is the full period of bargaining from 90 days prior to the nominal expiry date of the previous agreement until the point at which employees vote in favour of the proposed agreement.

[55] Given the extent and seriousness of the matters involved, the relatively short period of time since the commencement of the bargaining and the relatively short period of delay which will result, I consider that it is reasonable in all of the circumstances to make an order.

[56] I have considered the submissions and evidence provided by the Parties and I am satisfied that the requirements of section 230 of the Act have been met. In particular I am satisfied that it is reasonable in all the circumstances to make bargaining Orders. For reasons I outlined to the parties during proceedings and to be consistent with this Decision I considered it appropriate to make some alterations to the Orders proposed by the NUW. The NUW did not oppose these changes. I took into account the submission of Ms Collier that the proposed Orders could have led to further indefinite delays to the proposed ballot. I therefore more tightly confined the situation in which further or amended orders might be necessary.

[57] I note that on 4 April 2012 the NUW made an application for a protected action ballot order and offers have been made for that ballot. The ballot is to be held within 28 days (20 working days). It is not therefore likely that protected action can occur during the period the employers’ ability to conduct a ballot is constrained by my orders.

[58] I will order that:

[59] The consequential Orders were issued separately on 10 April 2012 [PR522252] and operate in accordance with section 232 of the Act.



Ms E Masters appeared for the Applicant.

Ms G Collier appeared for the Respondent.

Hearing details:

April 10

 1   [2011] FWAA 5488.

 2   Exhibit NUW 7 and Exhibite R 7.

 3   Exhibit NUW 7, Exhibit R 7 and Exhibit R 1.

 4   Exhibit NUW 1.

 5   Exhibit NUW 7.

 6   Exhibit NUW 1.

 7   Exhibit NUW 7.

 8   Exhibit R 2.

 9   Ibid.

 10   Exhibit R 3.

 11   Exhibit NUW 7.

 12   Exhibit R1 at point 9.

 13   Exhibit NUW 2.

 14   Ibid.

 15   Exhibit R 4.

 16   [2009] FWA 88

 17   [2009] FWA 88 at paras 62 to 65.

 18   Print L4605.

 19   [2012] FWAFB 1891.

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